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Before
Torruella, Circuit Judge,
Souter,* Associate Justice,
Thompson, Circuit Judge.
Maria Mancini Scott, with whom Candida Marin Cote and Keches
Law Group, P.C. were on brief, for appellant.
Timothy P. Van Dyck, with whom Robert G. Young, Nathanael J.C.
Nichols, and Edwards Wildman Palmer LLP were on brief, for
appellee.
June 5, 2014
engaging
in
activity
discrimination law.
protected
by
Massachusetts
anti-
-2-
He
repeated
the
allegation
in
Charge
of
When he
arrived, McDonald was there and was on the phone with McCarthy.
McCarthy determined that his department had no role to play in the
aftermath of the accident and ordered his people, including Dias
and McDonald, to leave the area.
Three days later, Dias sent McCarthy a five-page, singlespaced e-mail written in some agitation, criticizing McCarthy's
decision to direct him and the others to leave the scene of the
accident.
See
He accused
McCarthy of being more concerned with ensuring that Verizon did not
have to pay him for overtime work than with responding adequately
to the death of the technician.
-3-
to deal with you calling me friggin pathetic when I call out ill,
taking money from me and my family by not providing me with the
raise and bonus I well deserved . . . and many other unethical
performances."); id. ("What you did on [the day of the accident]
was
who
you
are
and
have
never
been
so
disappointed
and
See,
e.g.,
id.
("Your
treatment
of
me
is
The e-mail
closed by noting that Dias had submitted a time sheet for overtime
pay and stating that "[i]f you refuse to pay me for my on call
duty, that is you [sic] choice."
Id. at 155.
investigated
the
accusation,
found
it
McCarthy
credible,
and
-4-
At
filed
this
action
in
the
Superior
Court
of
of
race-based
Massachusetts law.
discrimination,
in
violation
of
-5-
anticipation
of
the
charge
conference,
Dias
and
Both sets of
Dias's proposed
Your duty
McCarthy.
At
the
charge
conference,
the
district
court
-6-
R.A. 87.
to refer to the October 2007 e-mail, but she made it clear that her
objection was limited to the form, and not directed at the court's
adoption of her own proposed jury instruction on retaliation: "my
question stems from the proposed verdict form, which I know we are
not talking about now."
R.A. 734.
that
Mr.
Dias
does
not
clearly
allege
race-based
on
retaliation
and
the
verdict
form
"improperly
R.A. 91.
The district court denied the motion, and this appeal followed.
III.
The procedural posture of the appeal is bewildering at
first sight, and although our discussion does not turn on any
technical nicety, some clarification may help to explain how we
reach the dispositive issue.
-7-
R.A. 143.
for
new
trial
for
abuse
of
discretion.").
Although he objected to
the failure of the special findings questions to refer to the email as protected conduct charging racial discrimination, those
questions simply reflected the very jury instructions he requested
and
was
granted,
which
spoke
only
of
the
internal
and
MCAD
not object to the instructions as given and did not designate the
instructions or special finding questions as a subject of appeal.
We do not, however, treat his designation of the new
trial issue as excluding consideration of the antecedent objection
-8-
precedents
encourage
us
to
construe
notices
of
appeal
Oakland
Scavenger
Co.,
487
U.S.
312,
316
(1988)
("[T]he
on the merits, for even if we make the assumption that the refusal
to include the e-mail reference in the verdict form was erroneous,
any
such
error
instructional
essential
was
error
fairness
is
of
harmless
under
reversible
the
trial,
-9-
the
only
or
standard
when
would
it
have
that
affects
changed
an
"the
the
outcome."
Allen v. Chance Mfg. Co., Inc., 873 F.2d 465, 469 (1st
discharge Dias was made more than a year after the e-mail, an
interval that we have repeatedly indicated is generally too long to
support a reliable inference of cause between protected conduct and
adverse employment action.
Corp., 331 F.3d 166, 175 (1st Cir. 2003) (affirming summary
judgment for employer on federal retaliation claim where protected
conduct occurred more than one year before employee's termination);
Mesnick v. Gen. Elec. Co., 950 F.2d 816, 828 (1st Cir. 1991) (same,
for gap of nine months); Bishop v. Bell Atlantic Corp., 299 F.3d
53, 60 (1st Cir. 2002) (reversing judgment of the verdict for
employee on retaliation claim under Maine law, where one-year gap
was
too
great
retaliation).
for
finding
"the
required
nexus"
showing
-10-
and the retaliation claimed, this would only be where the record
contains some other evidence of an employer's retaliatory animus
during the intervening time, casting a light of revenge on what the
employer did.
mail, McCarthy responded decisively to Dias's complaint that a coworker had taunted him with a racist comment; after an immediate
investigation, McCarthy suspended the offending employee without
pay.
McCarthy
gave
Dias
favorable
2007
year-end
performance
evaluation, from which ensued not only a large bonus on top of his
2007 base salary, but also a raise for 2008.
See
Freadman v. Metro. Prop. & Cas. Ins. Co., 484 F.3d 91, 101 (1st
Cir. 2007) (intervening salary increase and positive performance
evaluation suggest adverse action unrelated to protected activity).
The same work history belies Dias's claim that Verizon
retaliated by subjecting him to a hostile work environment.
Dias
in
pervasive"
this
appeal
treatment
at
he
described
Verizon,
-11-
let
no
specific
alone
"severe
evidence
of
or
its
district
courts
reference
to
the
in
its
jury
judgment
of
the
-12-
district
court
is
AFFIRMED.